That’s life: Hinch back in High Court

Five years ago, in a speech delivered in London, NSW Chief Justice Jim Spigelman described the principle of open justice as one which had “constitutional significance" and “one of the most pervasive axioms of the administration of justice in common law nations".

Two years later, Federal Court judge Steven Rares told the Judicial Conference of Australia that the principle of open justice “requires that justice be administered in public, transparently and openly, and that every member of society has the right not only to see what takes place in open court but to make fair and accurate reports of it, discuss it and to comment on it".

Justice Rares also pointed to the constitutional significance of the principle: in the 1997 case of Lange, the High Court had found that the constitution constrained the state from making laws or using its executive power “to inhibit citizens from being able to participate in parliamentary democracy", he said.

Next Tuesday, broadcaster
Derryn Hinch
will argue in the High Court that these principles are enshrined in Chapter 3 of the constitution (which creates the separation of powers).

The argument will be used in a challenge to charges that Mr Hinch breached suppression orders made under the Serious Sexual Offenders Monitoring Act 2005 (Vic) when he named at a 2008 rally two sex offenders who had already been tried and convicted.

At the heart of the challenge is whether the law, which introduces a new test for the making of a suppression order, and others like it in other states, intrude on the court’s ability to control its own process and therefore unconstitutionally impede the judicial function.

Mr Hinch will argue that Chapter 3 courts have an implied constitutional condition that they are open, and the Victorian legislation undermines that.

Decisions to suppress the discussion of cases that have come before the courts should be possible, he will argue, but they should be made by judges and legislatures should not be permitted to alter well-established principles relating to open justice. When deciding on whether a suppression order should be issued, the common law and some other statutes set out a test that an order can be made if it is “necessary in the interests of the administration of justice".

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But under the Serious Sexual Offenders Monitoring Act, the Victorian parliament introduced a different test, stipulating the court can make a suppression order if satisfied that it is “in the public interest".

David Bennett, QC, acting for Mr Hinch, told the High Court at the special leave hearing in July that “the only basis we say in which it is permissible to prevent publication is where it is necessary for the court to do justice in the case, not where it is merely in the public interest."

He argued that a law saying that one could not identify the victim of a sexual assault would be valid because it was necessary for the administration of justice – otherwise victims might not come forward.

Suppression orders are also often issued when the principle of open justice competes with that of a fair trial: well understood sub judice rules seek to protect juries from being unduly influenced by pre-trial publicity.

But “the state, whether state or federal, cannot legislatively limit the requirement that courts deliver open justice except in the rare type of case where it is necessary for the administration of justice," Mr Bennett said in July.

NSW, Queensland and Western Australia are intervening in next week’s case to defend similar laws to the one being challenged by Mr Hinch.

Many laws dealing with sexual offenders create a special regime where hearings and the provision of evidence is secret, which Mr Hinch will also argue impinges on the principle of openness that is a critical function of a Chapter 3 court.

In the 1996 case of Kable, the High Court struck down NSW legislation that detained a serious offender beyond the expiry of the original sentence because it undermined public confidence in the impartiality of the NSW Supreme Court. In the case, on which Mr Hinch will rely, the High Court said it was crucial for courts to look to the effect, not the form, of legislation when deciding on whether Chapter 3 had been compromised.

The High Court has already ruled this year on the principle of open justice. In the matter of the Australian Crime Commission v Hogan, it sided with openness, finding against a bid by actor Paul Hogan to keep documents secret. The court found that the price of Hogan’s decision to place material into evidence “may be the subsequent disclosure, as is often the case in litigation, of embarrassing publicity".

It also has a reserved decision, in the case of Totani, on the question of whether a provision in South Australia’s so-called bikie legislation, which required a court to make an order if it was satisfied a person was a member of a declared organisation, usurped the judicial function.

Mr Hinch, who is suffering from liver cancer but is expecting to attend Tuesday’s proceedings, is no stranger to the High Court. In 1987, it dismissed his appeal on conviction of two offences of contempt of court.

But in that case, then Chief Justice Anthony Mason noted: “Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society."